SEQ Properties Pty Ltd v Lorna O'Brien
[2014] QCATA 287
•9 October 2014
| CITATION: | SEQ Properties Pty Ltd v Lorna O’Brien [2014] QCATA 287 |
| PARTIES: | SEQ Properties Pty Ltd ACN 010 90 9092 (Applicant/Appellant) |
| v | |
| Lorna O’Brien (Respondent) |
| APPLICATION NUMBER: | APL240-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM (Presiding) Member Rogers |
| DELIVERED ON: | 9 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEALS - MANUFACTURED HOMES – where site agreement dispute –– where manufactured home encroaches on road reserve – where decision in favour of respondent - whether breach of duty by park owner to precisely identify site – whether park owner fulfilled statutory and contractual obligations – whether respondent showed park owner had caused loss - whether decision contrary to the evidence Manufactured Homes (Residential Park) Act 2003 (Qld) s 25(4) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal a decision by the tribunal in a manufactured homes dispute. Orders were made requiring the park owner to reposition the home on site 185 so it does not encroach outside its boundaries or, in default, to pay the home owner the sum of $27,874.
Background
Ms O’Brien is a home owner at the mobile home park managed by SEQ Properties Pty Ltd. She bought her manufactured home in 2007 from its original owners. They had purchased the home and arranged for it to be installed on site 185 (which at that time was incorrectly identified as site 182) in 2003. Ms O’Brien entered into a site agreement for site 185 with SEQ on 19 October 2007.
It has now become apparent the home encroaches onto a Department of Transport and Main Roads reserve by 1.6 metres.[1] At the hearing of the original application[2] the learned member found at paragraph 28
SEQ is liable to Ms O’ Brien for its failure to properly identify the site sufficient to ensure that her home had been properly positioned on the site.
[1]Identification Survey Map dated 6 September 2011.
[2]O’Brien v SEQ Properties Pty Ltd OCL005 – 2013.
Grounds of Appeal
The park owner has appealed the decision saying[3]:
They (sic) decision in favour of the Respondent (as applicant) in the original matter was incorrect because there is no causal connection between the actions of the Applicant and the fact the Respondent acquired a manufactured home that encroached on to the neighbouring road reserve.
[3]Application for leave to appeal or appeal APL 240-14 filed 27 May 2014. Part C.
Because this is an appeal involving mixed fact and law, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[4]
[4]Pickering v McArthur [2005] QCA 294 at [3].
It may also be relevant in a particular case to consider the gravity of the case, the amount in dispute, any public interest in the result of the particular case, or whether any question of law raised is one of wider importance than between the parties to the immediate dispute[5].
[5] Poiner v Quirk [2007] QDC 299. See also Willan v Gordon [2013] QCATA 305
Park owner’s submissions
The park owner submits the learned member erred in failing to identify the legislation in operation at the time of the original lease of site 185 in 2003 was not the Manufactured Homes (Residential Park) Act (Qld) 2003. It was in fact the Mobile Homes Act (Qld) 1989.
The park owner submits it did not cause the encroachment. It says the encroachment was caused by the original builders, who failed to establish they were placing the home within the boundaries of site 185. It submits the home owner has not established there was insufficient identification of the site at the time of construction[6].
[6]Submission by park owner attached to Application for leave to appeal or appeal APL 240-14 filed 27 May 2014 at para 3.5.
Further, the park owner submits it had no part in the sale of the manufactured home to the home owner. It says the home owner understood when buying the home she was buying a chattel and therefore there is no basis for finding the park owner ‘has expressly or impliedly warranted anything about the home’ purchased by the home owner.[7]
[7]Submission by park owner filed 28 July 2014 at para 5.3.
Further, in respect of the home owner’s site agreement the park owner submits
‘The Tribunal incorrectly found that the site agreement with the Respondent failed to identify the site[8]’: and
‘Once a home is constructed on a site and surrounding sites and they have been occupied for some years, the identification of the site by the Applicant was sufficiently precise for the purposes of the MHRPA and her site agreement’.[9]
[8]Submission by park owner filed 28 July 2014 at para 4.1(b).
[9]Submission by park owner filed 28 July 2014 at para 5.2(a).
The park owner then submits the home owner provided no evidence to suggest she was concerned that the home was correctly positioned on the site, or would have made any enquiries in that regards and that it appears she did not obtain any conveyancing assistance for the purchase of the home.[10]
[10]Submission by park owner filed 28 July 2014 at para 5.2(c).
Home owner’s submissions
The home owner submits the acceptance, at the hearing, that the original Form 1 Agreement had been assigned to her, and that it had not “precisely identified” the site, should be confirmed.[11] She submits the finding that the site had not been “precisely identified” in the Form 2 agreement she entered into with the park owner should be confirmed[12] and, had the site been “precisely identified”, she would have had the opportunity to recognise the mis-positioning of the home and withdraw from the sale during the cooling-off period.
Decision.
[11]Home Owner’s submissions filed 25 August 2014 para 9.
[12]Home Owner’s submissions filed 25 August 2014 para 22.
We will consider first the park owner's last submission, that the home owner had no conveyancing advice or concerns about the placement of the home. This last submission is contrary to the evidence. It is clear from the home owner’s evidence[13] she both sought legal advice and discussed with her solicitor what searches could be undertaken to ensure the home was correctly positioned. There is no error by the learned member.
[13]Transcript of Proceedings of Hearing Wednesday 16 April 2014 at page 11 line 38 and page16 line 25.
We accept the learned member erred when failing to identify the legislation in force at the time of the original site agreement was the Mobile Homes Act rather than the Manufactured Homes (Residential Park) Act[14], however this error did not impact on the decision.
[14]Transcript of Proceedings of Hearing Wednesday 16 April 2014 at page 42 line 38.
The learned member did not rely only on the legislation of the time to support his decision; he relied on the wording of the original Site Agreement[15]. That Agreement imposed the obligation on the park owner to ’insert particulars sufficient to identify the position of the mobile home.’ The learned member then found at [22] of his decision
‘SEQ’s information did not accurately show the boundaries sufficient to build a home within those boundaries – in particular, an accurately marked rear boundary to correspond with the physical boundary in relation to the adjoining road reserve.’
[15]Site Agreement between SEQ Properties Pty Ltd as Park Owner and G and J Tyler as Occupier commencing 19 September 2003.
The persons involved in the original site agreement were not available to give evidence at the hearing. The park owner did not bring evidence to suggest any information was available to the original home owners other than that which was contained in the documents. Based on the documents the learned member found that the park owner did not meet its obligation to the original home owners. We have considered those documents and we are satisfied the documents can support this finding. We are not satisfied there is a reasonable argument that this finding is attended by error.
The park owner argues that it is not responsible for the damage caused by the encroachment because the obligation was on the builder to locate the original survey pegs and ensure the home was sited on the block without encroachment.[16] Even if this was the case it did not relieve the park owner of the obligation imposed on it to ‘insert particulars sufficient to identify the position of the mobile home’ which required it to accurately show the boundaries of the leased site.
[16]Submission by park owner filed 28 July 2014 at para 6.2.
Turning to the site agreement between the parties to this dispute[17], the learned member at paragraph 11 properly identified the statutory and contractual duty of the park owner to ‘precisely identify the site’[18].
[17]Site Agreement between SEQ Properties Pty Ltd as Park Owner and Lorna O’Brien as Home Owner commencing 19 October 2007.
[18]Manufactured Homes (Residential Park) Act 2003 (Qld) s 25(4)(e).
The park owner argues that once the park was built the identification of the site by its number, in this case site number 185, was sufficient identification. It argued that it was not obliged to ensure the home was correctly positioned on the site. In effect, the park owner is arguing that once the home was sited in the wrong position by the builder it has no further responsibility to future home owners because any loss to the home owner is caused by the builder, not by it.
This argument fails to recognise the park owner’s ongoing obligation to ‘precisely identify the site’ the subject of the new site agreement. It was the evidence of the home owner that, if the area of the site or its dimensions had been given to her, she would have been able to identify the encroachment for herself within the cooling off period.
This evidence was accepted by the learned member. The park owner has not identified an error in this finding.
We cannot accept that simply referring to a site by number is sufficient to meet the obligation to ‘precisely identify the site.’ This is a situation where the park owner must identify the area which is to be leased so the home owner, without further surveys, investigations, calculations or digging for hidden survey pegs, knows precisely the boundaries of the site. Armed with that information home owners can determine if the chattel house they are purchasing is within the boundaries. Without that information it is extremely difficult for them to do so.
After carefully examining the evidence and the Tribunal’s reasons for its decision we have not been able to establish any basis upon which to give leave to appeal. The evidence supports the learned Member’s decision and we can find no compelling reason to come to a different view.
The application for leave to appeal is refused.
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